“Excessive” Forfeitures – When DoAsset Seizures and ForfeituresRun Afoul of the Eighth Amendment?
In Texas, the Fort Worth Court of Appeals wrote an opinion in December of last year thatseems to fix something of a mathematical formula in considering whether a forfeiture is"excessive" under the Constitution. As you know, the Constitution prohibits the imposition of "excessive fines" in the Eighth Amendment, and that prohibition extends to asset forfeiture cases.Or, at least that’s what we argue. Even that basic proposition is under attack and not yet well-settled, according to the prosecutors and some courts.Basically, the theory of this defensive argument in asset seizure and forfeiture cases isthat even if the property is otherwise subject to forfeiture under the law and the facts, the courtshould restrict the forfeiture because it is "excessive." However, the law is somewhat unsettled,as is mentioned in the case we discuss below, and, as I mentioned above, there is the thresholdargument as to whether the Eighth Amendment argument applies to asset forfeiture cases at all.Justice Lee Gabriel of the Fort Worth Court of Appeals wrote the opinion of the courtreleased two days before Christmas, 2010, in a case styled "$27,877.00 Current Money of theUnited States vs. The State of Texas." Here are the facts from Justice Gabriel's opinion:“In March 2007, Carrollton Police Department Narcotics Officer Mai Tran receivedinformation from a confidential informant that Roberts was trafficking marihuana andalprazolam (also known as Xanax) from a house in The Colony, Texas, where Robertslived with his girlfriend and some friends. Officer Tran obtained a search warrant from aCity of Carrollton magistrate (with jurisdiction in Dallas and Denton Counties) andexecuted the warrant at 4249 Malone Avenue, The Colony, Texas (the Malone address),in Denton County.At the Malone address, Carrollton police officers found 8.5 tablets of alprazolam, 2tablets of hydrocodone, 4.48 grams of marihuana, and $4,857 in cash. Roberts wasarrested.